Failure to implement Bylaws

["Edward Hasbrouck" <edward@xxxxxxxxxxxxx>]

ICANN has requested comments by tomorrow, 25 September 2009, on proposed 
revisions to the ICANN Bylaws for "Independent Review" of ICANN decisions:

http://www.icann.org/en/announcements/announcement-27jul09-en.htm

The fundamental problem with ICANN's current Bylaws for independent review 
is that those bylaws have never been properly implemented, and that -- 
despite multiple requests for independent review of ICANN decisions -- no 
independent review comporting with either the present or the previous 
independent review Bylaws has ever been conducted.

(According to a cursory statement on the ICMRegistry.Com Web site, some 
sort of "hearing" is being conducted in Washington this week in response 
to ICM Registry's request for independent review of an ICANN decision. 
However, whatever is happening in that matter is not in accordance with 
ICANN's Bylaws on independent review.  First, the proceedings are not 
being conducted with the maximum extent feasible of transparency, as 
required by the Bylaws. Second, the independent review provider and its 
procedures  were not determined by ICANN in accordance with the procedural 
rules of ICANN's bylaws for such policy decisions.  Instead, ICANN appears 
to have chosen the independent review provider and allowed it to determine 
procedures -- which procedures themselves do not comport with ICANN's 
Bylaws on transparency -- through completely improper secret, ex parte 
negotiations with the potential independent review provider while 
independent review requests with other parties were already pending.)

Changing the bylaws on independent review will accomplish nothing unless 
those bylaws are actually implemented (in accordance with, inter alia, the 
other provisions of the Bylaws with respect to policy development and 
decision-making procedures and transparency).  ICANN has done nothing to 
give reason for any confidence whatsoever that ICANN will actually 
implement any accountability mechanisms, current or revised.

As I have noted repeatedly in previous comments to ICANN, ICANN has failed 
to implement any of the three accountability mechanisms required by its 
current Bylaws.  ICANN's Board of Directors has never held a publicly 
disclosed vote to appoint or reappoint an Ombudsman. The Reconsideration 
Committee of the Board of Directors has made decisions which, by its own 
declaration, were based on matters not permitted to be a basis for such 
decisions. And ICANN has never conducted a policy development process to 
designate an independent review provider or develop or approve procedures 
for independent review, just as it never appointed the members of the 
independent review body provided for by its previous Bylaws.

(I also note that the ICANN's request for comments is materially false and 
misleading in its claim that, "ICANN has an Independent Review Process in 
place, as established at Article IV, Section 3 (1) of the bylaws".  ICANN 
does not, in fact, have any process in place that has been established in 
accordance with ICANN's accountability and transparency Bylaws.)

ICANN has knowingly and wilfully persisted in this failure, in flagrant 
violation of its own Bylaws. Members of ICANN's Board of Directors have 
tolerated this ongoing and flagrant violation of the Bylaws.  Given 
ICANN's failure to establish any other means of accountability, the only 
remaining mechanisms for calling ICANN to account are for the United 
States Department of Commerce to revoke its contracts with ICANN for 
breach of contract (in that ICANN has made contractual commitments to the 
DOC to observe its Bylaws on accountability), and for the State of 
California to revoke ICANN's corporate charter for persistent failure to 
operate in accordance with its Bylaws, as required by that charter.

Requests for independent review made under both the previous and present 
independent review Bylaws remain pending and have not been acted on by 
ICANN. The proposed revised independent review Bylaws are silent on what 
action, if any, will ever be taken on these outstanding requests.

Rather than revise the independent review Bylaws yet again, ICANN should 
implement its existing Bylaws on accountability, including independent 
review, by (1) appointing an Ombudsman, (2)compelling the Reconsideration 
Committee to act in accordance with the Bylaws in new cases and to 
properly reconsider those cases previous decided on impermissible grounds, 
and (3) designating an Independent Review Provider, developing procedures 
for independent review, and considering the backlog of outstanding 
requests for independent review, all in accordance with the procedural 
rules in the Bylaws for such decisions and actions, and the general 
mandate of the Bylaws for the maximum extent feasible of transparency in 
the operations of ICANN and its subsidiary bodies.

Sincerely,

Edward Hasbrouck

edward@xxxxxxxxxxxxx
http://hasbrouck.org/icann